Poland – Abolition in the application of the Gambling Act?

The Act on Gambling of November 19, 2009, which came into force on January 1, 2010, has caused and continues to evoke much controversy regarding the application of its provisions by customs and tax authorities and courts. Apart from the political context of its adoption, it should be recalled that due to doubts about the technical nature of the provisions of art. 6 par. 1 and art. 14 par. 1, it was twice of interest to the Court of Justice of the European Union.

In the matter of its interpretation, the most important judicial bodies of the Polish state – the Constitutional Tribunal, the Supreme Administrative Court or the Supreme Court – many times expressed their opinion.

From the point of view of those who write these words – lawyers involved in conducting both penal and fiscal proceedings regarding acts in art. 107 § 1 of the Fiscal Penal Code, as well as proceedings in the area of fines imposed pursuant to art. 89 of the Gambling Act, currently occurring discrepancies in the case law of common courts, regarding cases from 2010-2016, require legislators to take systemic solutions that would override or at least reduce the negative legal consequences for persons operating in this period of activity in the form of gaming machines, providing services or renting premises for the needs of such activity. It should be remembered that the nodal problem of applying the gambling act were the aforementioned provisions of art. 6 par. 1 and art. 14 par. 1. The first of them specified that the activity in the field of arranging gaming machines (as well as other games) can only be carried out on the basis of concessions, the other limited the place of arranging such games to casinos.

From the very beginning of the Act, entities operating in the gambling industry, as well as persons against whom acts were prosecuted for acts under art. 107 § 1 of the Penal Fiscal Code, indicated that the above regulations as technical, can not be applied in the Polish legal order due to the failure of the Polish legislator to notify the European Commission.

In a landmark judgment of 19 July 2012, issued in cases C-213/11, C 214/11 and C217 / 11, the Court of Justice of the European Union, answering the question of the Regional Administrative Court in Gdańsk, unequivocally indicated that provisions such as art. 14 par. 1 of the Gambling Act can not be applied by the Polish administration of justice, because they constitute „technical regulations” within the meaning of EU Directive 98/34 EC (point 25 of the substantiation for the judgment). As pointed out by the Tribunal, if we are dealing with such provisions as the provisions of the Gambling Act, they should be forwarded to the European Commission for notification, and a breach of the obligation to notify is a serious procedural error, the consequence of which is the recognition of the Gambling Act they are ineffective and can not be the basis for the decisions of national courts. The ruling of the Court in Luxembourg was a turning point within the meaning of the notion of technical provisions of the Act by the Polish judicial system.

Experience from the years 2012-2015 shows that during this period, common courts using the decision of the EU judicial body, most often released the accused from criminal liability for arranging games without vending machines, discontinuing proceedings or issuing acquittals. The Supreme Court, which in its decision of November 27, 2014, ref. No. Act II KK 55/14, supporting the pro-European interpretation of Polish law, even signaled the possibility of State Treasury liability in the event of non-notified provisions of the Gambling Act by public authorities.

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